Dallum v. Breckenridge

• Decision Date: 01 January 1812
• Citation: 3 Tenn. 152
• Parties: DALLUM v. BRECKENRIDGE, Etc.
• Court: Tennessee Circuit Court

3 Tenn. 152

DALLUM

v.BRECKENRIDGE, Etc.

Circuit Court, D. Tennessee.

1812.

This was an action of ejectment brought [by Dallum's lessee] to recover a tract of land on the south side of Duck river. The lessor of the plaintiff, claimed under a grant from the state of North Carolina, dated the 7th day of April, 1790, calling for five thousand acres, ‘lying on the south side of Duck river, on both sides of Fountain creek, adjoining Thomas Gill and Elijah Robertson's two tracts, numbers 1,043 and 1,045, beginning on Gill's northeast corner, at a red oak, walnut, and poplar, thence north thirty-five chains and twenty-five links to a poplar, Robertson's line, of number 1,043; thence west with said line forty-six chains to a red oak, Robertson's corner; thence north with said survey to William Gilbert's corner, in all two hundred and eighty-five chains and fifty links to an ash; thence west one hundred and sixty chains and seventy-five links to a stake; thence south one hundred and twenty-two chains to a stake in said Robertson's line of number 1,045; thence east, with said line, sixteen chains to a stake, Robertson's corner; thence south with said survey one hundred and ninety chains and seventy-five links to an ash; thence east one hundred and ninety chains and seventy-five links to the beginning.’ The plat and certificate of survey, attached to the grant, contained the same courses and distances; and the third line calls to run ‘north with said survey to William Gilbert's corner, and with said Gilbert's survey, in all two hundred and eighty-five chains and fifty links, to an ash.’ No marked lines and corners were proved to exist, except where the calls run with other surveys; nor did it appear that any actual survey was made. If the plaintiff was bound to stop at William Gilbert's corner, it would be far short of the two hundred and eighty-five chains and fifty links, and would not produce an interference with the defendants. But by doing so the plaintiff would not get his quantity of land, nor would he comply with a great many calls in his grant, as it respected the places where he was to adjoin, and run with Robertson's claims; by running the full distance of two hundred and eighty-five chains and fifty links, without regard to Gilbert's corner, he would comply with every call of the grant. Gilbert's corner is an ash, hickory, and beech; and the ash is marked as a corner on the south, east, and west sides. Gilbert's corner, at the other extremity of the line, is an ash, hickory, and dogwood. The defendant produced in evidence a grant of a younger date than that of the plaintiff, covering the land in dispute. He also produced an entry, for five thousand acres, upon which the grant issued, calling to lie on the south side of Duck river, on Lytle's creek, beginning at a tree marked L. D. and running up the creek, so as to include a tree marked A. B. for complement. Lytle's creek was proved to have been notorious at the date of the entry, but the existence of the trees was not shown.

Grundy, Whiteside & Hayes, for plaintiff.

We contend that the plaintiff has a right to run his whole distance called for, without regard to the corner of Gilbert. No rule is more universally settled than that if there be one incongruous or inconsistent call in an entry or grant, it shall be disregarded, or so construed as to give efficacy to the claim, provided by doing so consistency is produced in the rest of the calls. The grant calls to run ‘north to Gilbert's corner, in all two hundred and eighty-five chains and fifty links.’ If the court and jury should be of opinion that we must stop this line at the corner of Gilbert, the consequence will be that scarcely any subsequent call in the grant can be complied with; whereas, by continuing the course the full distance, consistency will everywhere prevail. But abandoning this idea for the present, let us inquire whether the grant is not sufficiently certain in another point to authorize the construction for which we contend? It is evident that it was not intended to stop at the corner, or wherefore the expression ‘in all, two hundred and eighty-five chains and fifty links?’ This expression is never used, except where it applies to more than one part of a line running the same course. If the object was to terminate the line at the corner of Gilbert, the words would have been, ‘to Gilbert's corner, two hundred and eighty-five chains and fifty links;’ but when ‘in all’ is added, it evidently follows that Gilbert's corner is only spoken of as being on the line which is to run that distance, viz., ‘to Gilbert's corner, and from Gilbert's corner, in all two hundred and eighty-five chains and fifty links.’ Should there be, however, any difficulty upon this part of the subject, we have no hesitation in believing that we have a right to resort to the plat and certificate of survey, to ascertain what land was intended to be granted. It does not follow that in all cases, the words of the grant are to be pursued; because if it can be shown, even by parol evidence, where the survey was made, that will control the grant. The land really surveyed is that to which the claimant is entitled; and therefore if the person claiming can show where the survey was made, by proving lines and corners of the survey, although the grant may not correspond with them, yet the calls in the grant shall yield. The reason for this is obvious, and will even apply to cases where the certificate of survey corresponds with the grant. No man shall be injured by the act of officers, over whom he has no control. If then a survey is made for a certain piece of...